Admissibility of evidence from unlawful mobile phone search and personal check due to suspicion of violation of restriction under FNIA

Facts

Parties and procedural history:

The appellant [A.] , represented by Attorney Laura Aeberli, filed an appeal in criminal matters against the judgment of the II. Criminal Chamber of the Higher Court of the Canton of Zurich of 23 September 2022 (SB220115-O/U/nm). The Higher Court had convicted the appellant of multiple violations of a restriction under Art. 119 para. 1 FNIA in conjunction with Art. 74 paras. 1 and 2 FNIA and of unlawful residence under Art. 115 para. 1 lit. b FNIA to a suspended custodial sentence of 50 days, with 2 days of pre-trial detention credited.

Facts of the case:

On 16 March 2021 at around 3:10 p.m., the appellant was checked and subsequently arrested by the Zurich Cantonal Police at [B.] train station. During the check, he consented to the inspection of his mobile phone. The device contained photos from January to March 2021 showing the appellant outside the district of [U.] , despite the Zurich Cantonal Migration Office having imposed a restriction on him on 18 December 2020 not to leave that district. In addition, WhatsApp messages indicated that he had been in the locations [V.] and [W.] . The appellant denied the charges and challenged the legality of the personal check and the mobile phone search. In his appeal, he sought an acquittal, the quashing of the Higher Court’s judgment and an award of compensation of CHF 400.-- plus interest.

Considerations

1. Admissibility of the appeal and standard of review:

The Federal Supreme Court examines the appeal for its merits. The lower court’s findings of fact and assessment of evidence may only be challenged if they are obviously incorrect or based on a violation of the law and the defect could have been decisive for the outcome of the proceedings (Art. 97 para. 1, Art. 105 paras. 1 and 2 FSCA). An arbitrary finding of facts exists if the decision is manifestly untenable or clearly contradicts the actual situation. The grounds for the appeal must meet the requirements of Art. 42 para. 1 and para. 2 FSCA, in particular in cases of fundamental rights violations or arbitrary rulings (Art. 106 para. 2 FSCA).

2. Legality of the personal check under Art. 215 CrimPC:

A personal check under Art. 215 CrimPC does not require concrete suspicion of an offence, but rather a relatively vague suspicion that, objectively considered, makes a connection between the person and a criminal offence appear possible. The lower court found that the appellant had behaved suspiciously by running to the train station – a location where breaches of the FNIA are to be expected. In addition, he had behaved in a “conspiratorial” manner, which the police considered sufficient grounds for the check. The Federal Supreme Court confirmed that the check was not carried out without cause and was proportionate. An overly formalistic standard for justifying the check is not appropriate, as this would unnecessarily hinder police work.

3. Legality of the mobile phone search and admissibility of the evidence:

The mobile phone search was conducted with the appellant’s consent. The lower court saw sufficient grounds for suspicion of a violation of the restriction, as the appellant had behaved suspiciously and there was a risk that he might delete evidence (“danger in delay” under Art. 241 para. 3 CrimPC). The Federal Supreme Court confirmed that the search was proportionate and limited to viewing photos and WhatsApp messages. The appellant’s…